| FWC 1211
|FAIR WORK COMMISSION
Fair Work Act 2009
Qube Ports Pty Ltd T/A Qube Ports & Bulk
DEPUTY PRESIDENT HAMILTON
MELBOURNE, 16 MARCH 2017
Application for relief from unfair dismissal.
 On 1 November 2016, Mr Stephen Campbell (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.
 The matter was not settled at conciliation and a determinative conference was held on Tuesday, 28 February 2017 and Wednesday 1 March 2017. I have taken account of all submissions and evidence.
 On 11 October 2016 Qube Ports Pty Ltd (the employer), dismissed the applicant for misconduct 1. It is agreed that this was termination with pay in lieu of notice.
 It is agreed and I find that Mr.Campbell is a person protected from unfair dismissal within s.382, and that the requirements of s.385 are also satisfied, with s.387 the only matter referred to in that provision to be determined.
 Section 387 of the Act provides:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
 In considering the application of s.387(a) I have taken into account the observations in Selvachandran v
. Peteron Plastics 2 which were made under earlier legislation but which have been applied to the Act.
 Mr.Campbell had received two recent written warnings. On 8 March 2016 he was issued with a final warning for inappropriate Facebook posts on 10 February 2016 in which he described Qube’s chairman as a ‘pig’ and was otherwise derogatory of his supervisors. Mr.Campbell accepts that the conduct occurred 3. Various claims were made in defence or partial defence of the Facebook posts.
 There are decisions where offensive or potentially offensive Facebook posts constitute a valid reason for termination of employment in the circumstances 4, and decisions where they do not5. In this case the Facebook post was directed at the chairman of Qube, and was shared by a number of employees of Qube. Mr.Campbell gave evidence that it was not shared by any employees, and then in cross examination changed his evidence and agreed that it was. In my view the comments posted on Facebook warranted a warning, and I do not need to determine if it was a valid reason for termination of employment. I would however have come to that conclusion in the circumstances. It is a serious matter for an employee to publicly or semi-publicly call the chairman of the company a ‘pig’, which is a rude and derogatory term carrying with it some contempt and hostility. Mr.Campbell himself accepted that it was ‘unacceptable I called Corrigan a pig’ in his interview with the employer6. The Qube social media policy requires employees to be polite and respectful in all communications and not to damage Qube’s reputation7, and this post is inconsistent with that policy. It seems likely that Mr.Campbell was aware of that policy and other directions8.
 On 27 June 2016 Mr.Campbell was issued with another final written warning alleging that on 12 and 15 June 2016 he attended for work with medication in his system without reporting this to management. Mr.Campbell denies this occurred on 12 June, and is supported by Ms.Smith. Even if Mr.Campbell did not have medication in his system on 12 June 2016 this, in my view, makes little difference to the warning and to the overall assessment I make in this matter. Mr.Campbell tested positive for amphetamines and opiates 9 while the Drug and Alcohol Management policy stated that the use of opiates and amphetamine type substances are prohibited10. Mr.Campbell was trained in this policy not long before the incident and completed a questionnaire in relation to it11.
 He was not terminated for this reason in any event but for other alleged valid reasons. I will take into account the warnings, excluding that for 12 June, as part of an overall assessment of the matter as harsh, unjust or unreasonable or not.
 Turning to deal with the claimed valid reasons, firstly the employer alleges that Mr.Campbell damaged hatch 4 of a ship that he excavated on night shift on 2-3 August 2016.
 Counsel for the applicant submitted that the allegations of misconduct against Mr.Campbell were serious and that Briginshaw v. Briginshaw should be applied. This is not a criminal trial in which the respondent must exclude all other possible explanations for conduct. I am required to determine this matter on the balance of probabilities and adopt the observations of a Full Bench in Brinks Australia Pty Ltd v. TWU 12 in which the Bench applied Briginshaw and said:
“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” [footnotes omitted]
 It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes. The Commissioner indicated that he thought it appropriate to apply a higher level of satisfaction in relation to findings of fact involved than the bare civil onus of the balance of probabilities. That was an error of law.
 It is clear, as we have already indicated, that his conclusion on the issue of whether Mr Pena had [acted as alleged] was a material factor in the Commissioner’s decision that the termination was harsh, unjust and unreasonable. The Commissioner went on to conclude that he was not satisfied, “to the level which I require” that Mr Pena [engaged in the conduct alleged]. In the circumstances the error of law was a material one. We cannot exclude the possibility that if the Commissioner had applied the civil standard of proof on the balance of probabilities his finding concerning the critical issue might have been different.”
 Mr.Ayres, the Shift Manager of the dock, gave evidence that Mr.Campbell must have known about it and did not tell anyone, and must have done the damage while excavating 13.
 Mr.Campbell gave evidence that he did not cause the damage, and that there are other explanations including that it could have been caused by a crane or by the ship operators, or by another employee. It was not entirely clear prior to the hearing what exactly the applicant’s answer to the allegations was. However, Mr.Ayres and Mr.Carlier gave evidence that it was unlikely to have been caused by the crane and I accept that evidence. I also note that the bucket on the excavator that Mr.Campbell was operating was yellow, not the orange apparently claimed by Mr.Campbell when meeting with Mr.Carlier and Ms.Antranik on 16 August 2016 14. There was apparently fresh yellow paint on the scratched area of the hold as shown by the photographs taken by Mr.Ayres and attached to his witness statement.
 I accept the evidence of Mr.Ayres and Mr.Carlier in preference to that given by Mr.Campbell. Mr.Campbell’s evidence was inconsistent, and even on the submissions of his own counsel was somewhat defensive. I would go further and say that he was reluctant to admit anything that might be detrimental to his case, and that his evidence was unreliable. For example, he somewhat reluctantly admitted during cross examination that his account of the conversation on 16 August at paragraph 36 of his witness statement was incomplete, despite nevertheless continuing to firmly maintain that he did not call Mr.Carlier a ‘fucking liar’. His account of the Facebook posts where he called the Qube chairman a ‘pig’ changed during cross examination. He initially gave evidence that his Facebook was accessible only to persons not employees of Qube, only to somewhat reluctantly admit that it was accessible to some employees, which was more prejudicial to him. I had the opportunity to observe the witnesses giving evidence and found the evidence given by Mr.Ayres and Mr.Carlier to be convincing.
 In relation to the claim that the ship operators may have scratched the hold, both sides relied on various business documents. The applicant relied on or frequently referred to the Stevedore Damage Report and claim made by the ship owners against the stevedores 15. That report may not apparently be the final claim, and further claim documents are possible. It is difficult to place much reliance on it.
 The respondent submitted that the evidence of Mr.Ayres about the handover hatch condition should be adopted. Mr.Ayres investigated the damage to the hold, and emailed his report on the alleged damage to the relevant company staff. His report, attached to his witness statement, states that that ANS, the ship operators, had not excavated in-hatch at the time of handover, and that the level of cargo at the time of the handover was above the point at which the damage was noted, and that there were not excavation entries by ANS listed on the operations timeline issued by the port agent 16. Despite relying on a similar business document counsel for the applicant nevertheless claimed that this was hearsay. The document appears to fall within the exception to the hearsay rule in s.69 of the Evidence Act 1995 (Cth.): Grubisic v. Chubb Securities17. The Commission is not bound by the rules of evidence but must have regard to them and give them weight: King v. Freshmore (Vic) Pty Ltd. Such a business record is in the circumstances an acceptable means of demonstrating certain facts in a business such as this.
 The applicant also relied on emails following the report, in which Mr.Ayres states that he doesn’t ‘want to be seen as targeting Stephen Campbell’, and records complaints by others about Mr.Campbell causing damage. Mr.Wingate replies that he needs ‘to deal with him accordingly (by the book same as anyone else)’, and other matters 18. This email exchange is a quite legitimate discussion and does not detract from the report made by Mr.Ayres. Overall it seems unlikely that ANS caused the damage to the hold.
 In relation to the submission that other employees could have done the damage, I accept the evidence of Mr.Ayres that this damage was discovered at or around the commencement of work by other employees 19. The ship agent’s statement of fact for ANS’ discharge operation and hatch log do not change my conclusions20.
 On the balance of probabilities Mr.Campbell did scratch the hold while excavating and did not report it.
 Secondly, Mr.Campbell admitted taking photos on the ship on 9 August 2016. However he put a number of issues in his defence, including that it is common practice, and that Grade 5 Foremen take photos of damage. I accept the evidence of Mr.Ayres and Mr.Carlier that it is not common practice but that in fact no mobile phones are to be taken on the job, as stated in the toolbox talk checklist 21. There are exceptions where people are specifically authorised. Mr.Campbell was not acting as a foreman at the time and was not authorised to take his phone on to the job22. Mr.Campbell also gave evidence that he repeatedly took a mobile phone on to the job, and also took medication without reporting it. This reinforces the conclusions that I have come to, although it is not necessary to those conclusions.
 Thirdly, the employer alleges that on 16 August 2016 Mr.Campbell called Mr.Carlier, his superior, a ‘fucking liar’ at the start of a disciplinary conversation about another matter. Both Mr.Carlier and Ms.Antranik gave evidence that these were the words he used 23. Mr.Campbell denied using these words, but his account of the conversation was on his own admission incomplete, and I repeat my earlier observations about his evidence. Mr.Hoy gave evidence and did not recall the words ‘fucking liar’, but was not as clear in his recollection as were Mr.Carlier and Ms.Antranik. I accept the evidence of Mr.Carlier and Ms.Antonik. Mr.Campbell did call Mr.Carlier a ‘fucking liar’.
 Some attempt was made to demonstrate that there were reasons for Mr.Campbell’s emotional response, namely that graffiti referring to him had not been removed. I accept the evidence of Mr.Ayres that it had been removed. Even if there were still faint traces there was no good reason for Mr.Campbell to call Mr.Carlier a ‘fucking liar’, which is a derogatory and disrespectful term to use to a superior.
 A fourth valid reason alleged by the employer was that Mr.Campbell was dishonest. In my view for the reasons already given Mr.Campbell was not honest and truthful in the accounts that he gave to his employer and the evidence he gave about the allegations made by the employer. This is a valid reason for termination of employment.
 I find that the four valid reasons for termination claimed by the employer were valid reasons for termination of employment.
(b) whether the person was notified of that reason;
 The parties agree that Mr.Campbell was notified of the reason for termination and I so find.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
 The parties agree that Mr.Campbell was given an opportunity to respond and I so find.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
 Mr.Hoy was present at the meeting held to discuss allegations against Mr.Campbell. This factor does not count against the respondent.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
 The parties agree that this is not relevant. The allegations are those of misconduct not poor performance.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;
 In this case the size would not be likely to impact on procedures, and there were dedicated human resources specialists or expertise.
(h) any other matters that the FWC considers relevant.
 In this case the employee quickly found another job after termination, although casual and at a lesser pay. He was employed for 30 years and his skills are limited to stevedoring. However he also appeared to show a less than respectful approach to management and to management policy, as discussed earlier. One would expect better after 30 years of employment. This counts against his application.
 I have made findings in relation to each of the factors in s.387 and give them weight. I have found that there are four valid reasons for termination of employment for example. Even if the allegation of scratching the hold is not taken into account, the other valid reasons for termination of employment persuade me to find, along with all the factors in s.387, that the termination of Mr.Campbell’s employment was not harsh, unjust or unreasonable. He was accorded a fair go all round. I dismiss his application. An order is contained in PR590726.
Ms L Doust, of counsel, together with Ms S Danalis appeared on behalf of the Applicant
M Follett, of counsel, together with Ms S Cheligoy, from Maddocks on behalf of the Respondent
Printed by authority of the Commonwealth Government Printer
<Price code C, PR590647>
1 Exhibit C1, Witness statement of Mr Stephen Campbell, attachment SC1, Exhibit C2, Applicant’s Outline of Submisions,18 January 2017, paragraph 
2 (1995) 62 IR 371 at 373
3 Exhibit Q1,Witness statement of Travis Carlier, paragraph 24, Exhibit Q2, Respondent’s Submissions, paragraph 5.1
4 Eg. O’Keefe v. Willims Muirs Pty Ltd  FWA 5311
5 Eg. Linfox v. Stutsel  FWAFB 7097
6 Attachment TC10
7 Attachment TC5, p.2
8 Exhibit Q1, paragraph 17
9 Exhibit Q1, Witness statement of Travis Carlier, Attachment TC16
10 Exhibit Q1, Witness statement of Travis Carlier, Attachment TC12, paragraph 3(b), (c)
11 Exhibit Q1, Witness statement of Travis Carlier, paragraph 27
12 PR922612, Giudice J, Acton SDP, Hingley C, 18 September 2002
13 Exhibit Q3, Witness statement of David Ayres, paragraphs 9-23
14 Exhibit Q5, Supplementary witness statement of Ms.Antranik, paragraph 6, Attachment RA2-1.
15 Exhibit Q3, Witness statement of David Ayres, Attachment DA2
16 Exhibit Q3, Witness statement of David Ayres, Attachment DA3.
17  FWA 4322. See ASIC  NSWSC 1099 at 39 and 41, Blomfield  NSWSC 978
18 Exhibit C5
19 Exhibit Q3, Witness statement of David Ayres, paragraph 15-18
20 Ibid, Attachments DA4, DA5
21 Exhibit Q1, Witness statement of Travis Carlier, attachment TC28
22 Exhibit Q3, Witness statement of David Ayres, paragraphs 24-32
23 Exhibit Q1, Witness statement of Travis Carlier, paragraph 63, Exhibit Q4, Witness statement of Ms.Antranik paragraph 11.